'Anachronistic, Repressive': PUCL Moves Supreme Court Challenging Constitutional Validity Of Offence Of Sedition U/S 124A IPC

The Petitioner in this case argues that the impugned provision is anachronistic, and has lost all relevance in a free democracy like India. In this context it is submitted that Sedition is a "political crime", originally enacted to prevent political uprisings against the Crown and to control the British colonies. It is argued that a law of such "repressive" character, has no place in independent India.

"The law of sedition was introduced in 1870 into the IPC, as derived from the British Sedition Act of 1661, as a colonial tool to criminalise dissent against the British imperialist regime, and in particular to supress the Indian independence struggle. Thus, since its conception, sedition has possessed a distinctly political nature and has been used to stifle political opposition and criticism of the British Monarchy," the plea filed through Advocate Aparna Bhat states at the outset.

It points out that the validity of Section 124A was tested in the case of Kedar Nath v. State of Bihar in 1962, whereby a "grave error" was committed by upholding the provision. In fact, the judgment fails to analyze the provision on following counts:

• Constituent Assembly Debates related to Sedition
• Development & interpretation of Article 19(1)(a) and reasonable restrictions under Article 19(2)
• Relevancy of the provision in independent India
• Proximate nexus between 'public order' and the expressions used in the impugned provisions
• Vagueness and overbreadth of the expressions used in the impugned provision

The plea stated that terms like 'disaffection' 'disloyalty' 'disapprobation' etc. used to define Sedition are vague and therefore make the provision void. In fact, the Petitioner contends, the Kedar Nath judgment admits that if literal meaning to the words of Section 124A are given de hors what was said in the Judicial Committee, the Section will be beyond the limits of Art.19(2).

It is further argued that the judgment, while upholding the provision, applied the "tendency test", which has been widely criticised in international jurisprudence for being vague and over-broad.

The plea states that the judgment ignores the "real risk" test which is now preferred in order to protect the right to freedom of speech and expression. Besides, the provision should now be viewed from the prism of development in law since the case of Shreya Singhal v. Union of India, the doctrine of manifest arbitrariness laid down in Shayara Bano v. Union of India, and the concept of reasonableness and disproportionality laid down in KS Puttaswamy v. Union of India.

Another important aspect highlighted in the plea is that when Section 124A was considered in Kedar Nath case, the offence was treated as non-cognizable offence under CrPC and an arrest could only be made on warrant issued by Magistrate. However, when CrPC was amended in 1973 and the 1898 Code was repealed, the offence of sedition became cognizable.

"Consequently, the severity of the offence has drastically increased since 1973 leaving police with wide discretionary powers to arrest. The charge under sedition has been widely abused as it is of political nature," states the plea.

Significantly, CJI NV Ramana has also expressed alarm at the rampant misuse of the provision and expressed reservation at continuing its use.

Is It Still Necessary To Continue Sedition Law, Which Was Used By British To Suppress Our Freedom Movement, Even After 75 Yrs Of Independence: CJI Ramana To Centre

The remarks were made while hearing a petition moved by Army veteran Major-General SG Vombatkere (Retired) challenging the constitutionality of the offence of sedition under Section 124A of IPC for being 'vague' and creating a 'chilling effect on free speech'.

A Bench headed by Justice UU Lalit is also hearing a plea, as well as Intervention Applications, challenging the constitutional validity of Section 12 4A of the IPC. On 30 April, the Court had issued notice in the plea filed by two journalists working in the States of Manipur and Chhattisgarh.

On 12 July, the Court had sought the response of the AG in the case, and had adjourned the matter to July 27. Two weeks have been granted to the Respondents to file their responses.

Former Union Minister Arun Shourie has also moved the Top Court stating that the Doctrine of Presumption of Constitutionality applied in the Kedar Nath judgment is no longer relevant since the case of Navtej Singh Johar v. Union of India and thus, the matter requires re-consideration.